Wing v. State

ORDER DISMISSING CASE CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

JAMES D. TODD, District Judge.

On May 16, 2014, Plaintiff Jeremy Wing, booking number 13139015, a pretrial detainee at the Shelby County Criminal Justice Complex in Memphis, Tennessee, filed a pro se complaint pursuant to 42 U.S.C. § 1983, accompanied by a motion seeking leave to proceed in forma pauperis. (ECF Nos. 1 & 2.) In an order issued on May 19, 2014, the Court granted leave to proceed in forma pauperis and assessed the civil filing fee pursuant to the Prison Litigation Reform Act of 1996 ("PLRA"), 28 U.S.C. §§ 1915(a)-(b). (ECF No. 4.) The Clerk shall record the defendants as the State of Tennessee, Shelby County District Attorney General Amy P. Weirich; and Mary Thomas, the foreperson of the grand jury.

The factual allegations of the complaint are as follows:

My statement of claim is, my fraud indictment that has been stamped by the Grand Jury foreperson, Mary Thomas and the Shelby County D.A. Any Weirich. The foreperson which has exceeded her (Mary Thomas) two year tenure. She (Mary Thomas) was also deceased at the time I was indicted on 11-20-12. My case #12-06173, in criminal court #9. I also have copies of other people's indictments with Mary Thomas' name on their indictments. Their names are Michael Smith case #09-04071 indicted on 6-30-09, Tavoris and Jarvis Boyd case #12-03889 indicted on 7-24-12, Christopher Bailey case #12-05561 indicted on 10-23-12, Clark and D. Norry case #12-05755 indicted on 10-30-12.

(ECF No. 1 at PageID 2.)

Plaintiff seeks his dismissal of his case and indictment, money damages, and immediate release. (ECF No. 1 at PageID 3.)

By way of background, a Shelby County grand jury issued Indictment Number 12-06173 on November 20, 2012, charging Wing with aggravated robbery and theft. See http://jssi.shelbycountytn.gov/. On March 24, 2015, Wing pled guilty to carjacking and the theft charge was resolved by an order of Nolle Prosequi. The relevance of the other person's indictments to Plaintiff's claims is unclear.

The Court is required to screen prisoner complaints and to dismiss any complaint, or any portion thereof, if the complaint-

(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or

(2) seeks monetary relief from a defendant who is immune from such relief.

28 U.S.C. § 1915A(b); see also 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).

In assessing whether the complaint in this case states a claim on which relief may be granted, the Court applies the standards under Federal Rule of Civil Procedure 12(b)(6), as stated in Ashcroft v. Iqbal, 556 U.S. 662, 677-79 (2009), and in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). "Accepting all well-pleaded allegations in the complaint as true, the Court consider[s] the factual allegations in [the] complaint to determine if they plausibly suggest an entitlement to relief.'" Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011) (quoting Iqbal, 556 U.S. at 681) (alteration in original). "[P]leadings that... are no more than conclusions are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Iqbal, 556 U.S. at 679; see also Twombly, 550 U.S. at 555 n.3 ("Rule 8(a)(2) still requires a showing, ' rather than a blanket assertion, of entitlement to relief. Without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only fair notice' of the nature of the claim, but also grounds' on which the claim rests.").

"A complaint can be frivolous either factually or legally. Any complaint that is legally frivolous would ipso facto fail to state a claim upon which relief can be granted." Hill, 630 F.3d at 470 (citing Neitzke v. Williams, 490 U.S. 319, 325, 328-29 (1989)).

Whether a complaint is factually frivolous under §§ 1915A(b)(1) and 1915(e)(2)(B)(i) is a separate issue from whether it fails to state a claim for relief. Statutes allowing a complaint to be dismissed as frivolous give "judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless." Neitzke, 490 U.S. at 327, 109 S.Ct. 1827 (interpreting 28 U.S.C. § 1915). Unlike a dismissal for failure to state a claim, where a judge must accept all factual allegations as true, Iqbal, 129 S.Ct. at 1949-50, a judge does ...

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